LIMITED GUARANTEE
Exhibit (d)(5)
EXECUTION VERSION
Limited Guarantee, dated as of March 31, 2011 (this “Limited Guarantee”), by
Providence Equity Partners VI L.P. and Providence Equity Partners VI-A L.P., each a Delaware
limited partnership (together, the “Guarantors”) in favor of SRA International, Inc., a
Delaware corporation (the “Company”). Reference is hereby made to the Agreement and Plan
of Merger (the “Merger Agreement”), dated as of the date hereof, among the Company,
Sterling Parent Inc., a Delaware corporation (“Parent”), and Sterling Merger Inc., a
Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”). Capitalized
terms used herein but not otherwise defined shall have the meanings ascribed to them in the Merger
Agreement.
1. Limited Guarantee. Each Guarantor hereby irrevocably and unconditionally guarantees to the Company, the
payment, if and when due, of such Guarantor’s respective Pro Rata Percentage (as defined in
Section 24 below) of (a) the Parent Fee if and when required to be paid by Parent pursuant
to Section 7.5(c) of the Merger Agreement and any reimbursement obligations of Parent
pursuant to Section 7.5(d) and (b) any Reimbursement Obligations, if and when due, pursuant
to Sections 5.13(d) or 5.13(e) of the Merger Agreement (collectively, the
“Guaranteed Obligations”); provided that in no event shall either Guarantors’
liability under this Limited Guarantee exceed such Guarantor’s Pro Rata Percentage of
$113,185,608.71 (such amount, plus the aggregate amount to which the Company shall be entitled
pursuant to Section 22 of this Limited Guarantee, being the “Maximum Liability Cap”);
provided, further, that this Limited Guarantee will expire and will have no further
force or effect, and the Company and its Affiliates will have no rights hereunder, upon termination
of the obligations and liabilities of the Guarantors hereunder in accordance with Section
6. The Company hereby agrees that no Guarantor shall in any event be required to pay more than
its respective Pro Rata Percentage of the Maximum Liability Cap under or in respect of this Limited
Guarantee, and that no Guarantor or Guarantor Affiliate (as hereinafter defined) shall have any
obligation or liability to any Person relating to, arising out of or in connection with, this
Limited Guarantee, other than as expressly set forth herein. All payments hereunder shall be made
in lawful money of the United States, in immediately available funds.
(a) This Limited Guarantee is one of payment, not collection, and a separate action or actions
may be brought and prosecuted against the Guarantors to enforce this Limited Guarantee,
irrespective of whether any action is brought against Parent or Merger Sub or whether Parent or
Merger Sub are joined in any such action or actions.
(b) Except as otherwise provided herein, the liability of the Guarantors under this Limited
Guarantee shall, to the fullest extent permitted under applicable law, be absolute and
unconditional irrespective of:
(i) any change in the corporate existence, structure or ownership of Parent, Merger Sub
or the Guarantors, or any insolvency, bankruptcy, reorganization or other similar proceeding
affecting Parent, Merger Sub or the Guarantors or any of their respective assets;
(ii) any waiver, amendment or modification of the Merger Agreement in accordance with
its terms, or change in the time, manner, place or terms of payment or performance, or any
change or extension of the time of payment or performance of, renewal or alteration of, any
Guaranteed Obligation, any escrow arrangement or other security therefor, any liability
incurred directly or indirectly in respect thereof, or any agreement entered into by the
Company, on the one hand, and Parent and/or Merger Sub, on the other hand, in connection
therewith;
(iii) the existence of any claim, set off or other right that the Guarantors may have
at any time against Parent or Merger Sub whether in connection with any Guaranteed
Obligation or otherwise;
(iv) the failure or delay on the part of the Company to assert any claim or demand or
to enforce any right or remedy against Parent or Merger Sub or any Guarantor;
(v) any discharge of a Guarantor as a matter of applicable Law or equity (other than a
discharge of a Guarantor with respect to the Guaranteed Obligations as a result of (A)
payment of the Guaranteed Obligations in accordance with their terms, (B) defenses to the
payment of the Guaranteed Obligations that would be available to Parent under the Merger
Agreement or (C) a breach by the Company of this Limited Guarantee); or
(vi) any other act or omission that may or might in any manner or to any extent vary
the risk of the Guarantors or otherwise operate as a discharge of the Guarantors as a matter
of law or equity (other than payment of the Guaranteed Obligations or as permitted by
Section 2(e) of this Limited Guarantee).
(c) The Guarantors hereby waive any and all notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Company upon
this Limited Guarantee or acceptance of this Limited Guarantee. The Guaranteed Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance
upon this Limited Guarantee, and all dealings between Parent, Merger Sub or the Guarantors, on the
one hand, and the Company, on the other, shall likewise be conclusively presumed to have been had
or consummated in reliance upon this Limited Guarantee. When pursuing its rights and remedies
hereunder against any Guarantor, the Company shall be under no obligation to pursue such rights and
remedies it may have against Parent or Merger Sub or any other Person for the Guaranteed
Obligations or any right of offset with respect thereto, and any failure by the Company to pursue
such other rights or remedies or to collect any payments from Parent or Merger Sub or any such
other Person or to realize upon or to exercise any such right of offset shall not relieve any
Guarantor of any liability hereunder.
(d) The Company shall not be obligated to file any claim relating to any Guaranteed Obligation
in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar
proceeding, and the failure of the Company to so file shall not affect the Guarantors’ obligations
hereunder. In the event that any payment to the Company in respect of any Guaranteed Obligation is
rescinded or must otherwise be returned for any reason whatsoever, the Guarantors shall remain
liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made.
(e) Notwithstanding any other provision of this Limited Guarantee, the Company hereby agrees
that (i) each of the Guarantors may assert, as a defense to, or release or discharge of, any
payment or performance by such Guarantor under this Limited Guarantee or any claim, set-off,
deduction, defense or release that Parent or Merger Sub could assert against the Company under the
terms of, or with respect to, the Merger Agreement and (ii) any failure by the Company to comply
with the terms of the Merger Agreement, including, without limitation, any breach by the Company of
any representation, warranty or covenant contained therein or in any of the agreements,
certificates and other documents required to be delivered by the Company pursuant to the terms of
the Merger Agreement (whether such breach results from fraud, intentional misrepresentation or
otherwise), that would relieve each of Parent and Merger Sub of its obligations under the Merger
Agreement shall likewise automatically and without any further action on the part of any Person
relieve the Guarantors of their obligations under this Limited Guarantee.
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3. Waiver of Acceptance, Presentment; Etc. The Guarantors expressly and irrevocably waive defenses on the basis of promptness,
diligence, notice of acceptance hereof, presentment, demand for payment, notice of non-performance,
default, dishonor, protest and any notice of any kind (other than notices to be provided in
accordance with Section 14 hereof or Section 8.6 of the Merger Agreement), all defenses
which may be available by virtue of any valuation, stay, moratorium or other similar law now or
hereafter in effect, any right to require the marshalling of assets of one or both of Parent or
Merger Sub, or any other Person liable with respect to any of the Guaranteed Obligations, and all
suretyship defenses generally, other than defenses that are available to Parent or Merger Sub (i)
under the Merger Agreement or (ii) in respect of a breach by the Company of this Limited Guarantee.
4. Sole Remedy.
(a) The Company acknowledges and agrees that neither Parent nor Merger Sub has any assets,
other than their respective rights under the Merger Agreement, and that, except as and on the terms
and conditions contemplated by this Guarantee or the Equity Commitment Letter, no funds are
expected to be contributed to Parent or Merger Sub unless the Closing occurs, and that, except for
rights against Parent and Merger Sub set forth in the Equity Commitment Letter and Section 8.7 of
the Merger Agreement, the Company shall not have any right to cause any assets to be contributed to
Parent or Merger Sub by any Guarantor, any Guarantor Affiliate (as hereinafter below) or any other
Person.
(b) Without limiting any obligations of Parent or Merger Sub under the Merger Agreement or
either Guarantor under the Equity Commitment Letter, the Company further agrees and acknowledges
that no Person other than the Guarantors has any obligations hereunder and that, notwithstanding
that Guarantors may be limited partnerships, the Company has no remedy, recourse or right of
recovery against, or contribution from, (i) any former, current or future general or limited
partners, stockholders, holders of any equity, partnership or limited liability company interest,
officer, member, manager, director, employees, agents, controlling persons, assignee or Affiliates
of any Guarantor (other than Parent and Merger Sub), (ii) any lender or prospective lender, lead
arranger, arranger, agent or representative of or to Parent or Merger Sub or (iii) any former,
current or future general or limited partners, stockholders, holders of any equity, partnership or
limited liability company interest, officer, member, manager, director, employees, agents,
attorneys, controlling persons, assignee or Affiliates (other than the Guarantors, Parent or Merger
Sub) of any of the foregoing (those persons and entities described in the foregoing clauses (i),
(ii) and (iii) being referred to herein collectively as “Guarantor Affiliates”), through
any Guarantor, Parent or Merger Sub or otherwise, whether by or through attempted piercing of the
corporate veil or similar action, by the enforcement of any assessment or by any legal or equitable
proceeding, by virtue of any statute, regulation or applicable law, by or through a claim by or on
behalf of any Guarantor, Parent or Merger Sub against any Guarantor or any Guarantor Affiliate, or
otherwise, except for its rights against the Guarantors under this Limited Guarantee, its third
party beneficiary rights under the Equity Commitment Letter and its rights against Parent and
Merger Sub under the Merger Agreement; provided, however, that in the event any
Guarantor (i) consolidates with or merges with any other Person and is not the continuing or
surviving entity of such consolidation or merger, or (ii) transfers or conveys all or a substantial
portion of its properties and other assets to any Person such that the sum of all of such
Guarantor’s remaining net assets plus uncalled capital commitment is less the Maximum Liability
Cap, then, and in each such case, the Company may seek recourse, whether by the enforcement of any
judgment or assessment or by any legal or equitable proceeding or by virtue of any statue,
regulation or other applicable law, against such continuing or surviving entity or such Person (in
either case, a “Successor Entity”), as the case may be, but only to the extent of the
unpaid liability hereunder up to the portion of the Guaranteed Obligations for which such Guarantor
is liable, as determined in accordance with this Limited Guarantee. As used herein, unless
otherwise specified, the term Guarantor shall include such Guarantor’s Successor Entity.
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(c) The Company hereby covenants and agrees that it shall not institute, and shall cause each
of its Affiliates and their respective representatives not to institute, directly or indirectly,
any Action or bring any other claim arising under, or in connection with, this Limited Guarantee,
the Merger Agreement, the Equity Commitment Letter, the Rollover Letter, the Debt Commitment
Letter(s) or the transactions contemplated thereby, against any Guarantor or any Guarantor
Affiliate except for (i) claims by the Company against any Guarantor under and in accordance with
this Limited Guarantee (the “Retained Guarantee Claims”), (ii) claims by the Company
against Parent or Merger Sub under and in accordance with the Merger Agreement (the “Retained
Merger Agreement Claims”), (iii) with respect to the amended and restated agreement, dated
March 15, 2011 between the Company and Providence Equity Partners L.L.C. (the “NDA”),
claims by the Company against Providence Equity Partners L.L.C. under and in accordance with the
NDA (the “Retained NDA Claims”) and (iv) claims by the Company against Parent to cause
Parent to enforce the Equity Commitment Letter in accordance with its terms and subject to the
limitations in the Merger Agreement (the “Retained Equity Commitment Claims” and together
with the Retained NDA Claims, the Retained Guarantee Claims and the Retained Merger Agreement
Claims, the “Retained Claims”).
(d) Recourse against each Guarantor, as applicable, solely with respect to the Retained
Guarantee Claims, against Parent or Merger Sub solely with respect to the Retained Merger Agreement
Claims (and in the case of Parent, the Retained Equity Commitment Claims) and against Providence
Equity Partners L.L.C. solely with respect to the Retained NDA Claims shall be the sole and
exclusive remedy of the Company and all of its Affiliates against any Guarantor or any Guarantor
Affiliate in respect of any liabilities or obligations arising under, or in connection with, the
Merger Agreement, or the transactions contemplated thereby, and such recourse shall be subject to
the limitations described herein and therein.
5. Subrogation. The Guarantors will not exercise any rights of subrogation or contribution against Parent
or Merger Sub, whether arising by contract or operation of law (including, without limitation, any
such right arising under bankruptcy or insolvency laws) or otherwise, by reason of any payment by
any of them pursuant to the provisions of Section 1 hereof unless and until the Guaranteed
Obligations have been indefeasibly paid in full.
6. Termination. No Guarantor shall have any further liability or obligation under this Limited Guarantee
from and after the earliest of (a) the Effective Time, (b) termination of the Merger Agreement
under circumstances in which Parent would not be obligated to pay any Guaranteed Obligations, and
(c) the 120th day after a termination of the Merger Agreement in accordance with its terms (a
“Qualifying Termination”), unless prior to the 120th day of such Qualifying Termination,
the Company shall have commenced a suit, action or other proceeding against Parent or Merger Sub
alleging any Guaranteed Obligation is due and owing or against the Guarantors that amounts are due
and owing from the Guarantors pursuant to Section 1 of this Limited Guarantee (a “Qualifying
Suit”); provided that if a Qualifying Termination has occurred and a Qualifying Suit is
filed prior to the 120th day after a Qualifying Termination, no Guarantor shall have any further
liability or obligation under this Limited Guarantee from and after the earliest of (w) the
Effective Time, (x) a final, non-appealable resolution of such Qualifying Suit determining that
either Parent or Merger Sub does not owe any Guaranteed Obligation or that the Guarantors do not
owe any amount pursuant to Section 1 of this Limited Guarantee, (y) a written agreement among the
Guarantors and the Company terminating the obligations and liabilities of the Guarantors pursuant
to this Limited Guarantee, and (z) payment of the Guaranteed Obligation due and owing by the
Guarantors, Parent or Merger Sub. In the event that the Company or any of its Affiliates, or
representatives institutes any suit, action or other proceeding or makes any claim (A) asserting
that the provisions of this Section 6 or Sections 1, 2, 4,
7, 8, 11, 15, 16, 17, 18, 20 or
23 hereof are illegal, invalid or unenforceable in whole or in part or that any Guarantors
is liable in excess of or to a greater extent than such Guarantor’s Pro Rata Percentage of the
Guaranteed Obligations
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(excluding the exercise of the Company’s right to seek specific performance under the Equity Commitment
Letter and Section 8.7(b) of the Merger Agreement), (B) arising under, or in connection with, this
Limited Guarantee, the Merger Agreement, the Equity Commitment Letter, the Debt Commitment
Letter(s) or the transactions contemplated hereby or thereby, other than a Retained Claim or (C) in
respect of a Retained Claim in any jurisdiction other than Delaware, then (x) the obligations of
the Guarantors under this Limited Guarantee shall terminate ab initio and be null and void and (y)
none of the Guarantors, Parent, Merger Sub nor any Guarantor Affiliate shall have any liability to
the Company or any of its Affiliates under this Limited Guarantee or with respect to the
transactions contemplated by the Merger Agreement, the Equity Commitment Letter or the Debt
Commitment Letter(s). Upon the request of any Guarantor after any valid termination of the
obligations and liabilities of the Guarantors pursuant to the provisions of this Section 6,
the Company shall provide such Guarantor with written confirmation of such termination.
7. Continuing Guarantee. Except to the extent that the obligations and liabilities of the Guarantors are terminated
pursuant to the provisions of Section 6 hereof, this Limited Guarantee is a continuing one
and shall remain in full force and effect until the indefeasible payment and satisfaction in full
of the Guaranteed Obligations, shall be binding upon each Guarantor, its successors and assigns,
and shall inure to the benefit of, and be enforceable by, the Company and its respective successors
and permitted transferees and assigns. All obligations to which this Limited Guarantee applies or
may apply under the terms hereof shall be conclusively presumed to have been created in reliance
hereon. Notwithstanding anything to the contrary contained in this Limited Guarantee, the Company
hereby agrees that to the extent Parent is relieved of its payment obligations in respect of the
Parent Fee or the Reimbursement Obligations (in each case, other than as provided for under
Section 2(b)(i) of this Limited Guarantee), each Guarantor shall be similarly relieved of
its Guaranteed Obligations under this Limited Guarantee.
8. Release. By its acceptance of this Limited Guarantee, to the maximum extent permitted by law, the
Company, on its own behalf and, on behalf of its Affiliates, security holders and representatives
and their respective officers, directors, employees, representatives and agents (collectively, the
“Releasing Persons”) hereby waives each and every right of recovery against each Guarantor
and each Guarantor Affiliate under or in connection with or related to this Limited Guarantee, the
Merger Agreement, the Equity Commitment Letter, the Debt Commitment Letter(s) or the transactions
contemplated hereby or thereby or otherwise relating thereto and hereby releases each Guarantor and
each Guarantor Affiliate from and with respect to any claim, known or unknown, now existing or
hereafter arising, in connection with this Limited Guarantee, the Merger Agreement, the Equity
Commitment Letter, the Rollover Letter, the Debt Commitment Letter(s) or any transaction
contemplated hereby or thereby or otherwise relating thereto, whether by or through attempted
piercing of the corporate (or limited liability company or partnership) veil, by or through a claim
by or on behalf of any Guarantor, Parent or Merger Sub or any other Person against any Guarantor or
any Guarantor Affiliate, or otherwise under any theory of law or equity (the “Released
Claims”); provided that the foregoing shall not limit, and the Released Claims shall
not include, any of the Retained Claims that are specifically permitted against such Guarantor or
Guarantor Affiliate pursuant to Section 4(c) of this Limited Guarantee. Without otherwise limiting
the generality of the foregoing or any rights or remedies available to any Guarantor or any
Guarantor Affiliate, the Company agrees that this Limited Guarantee shall serve as a complete
defense to any Released Claim against any Guarantor or any Guarantor Affiliate.
9. Entire Agreement. This Limited Guarantee, together with the Merger Agreement, the NDA and the Equity
Commitment Letter constitutes the entire agreement with respect to the subject matter hereof and
supersedes any and all prior discussions, negotiations, proposals, undertakings,
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understandings and
agreements, whether written or oral, among Parent, Merger Sub and the Guarantors or any Guarantor
Affiliate on the one hand, and the Company or any of its Affiliates on the other hand.
10. Amendments and Waivers. No amendment or waiver of any provision of this Limited Guarantee will be valid and binding
unless it is in writing and signed, in the case of an amendment, by the Guarantors and the Company,
or in the case of waiver, by the party against whom the waiver is to be effective. No waiver by
any party of any breach or violation of, or default under, this Limited Guarantee, whether
intentional or not, will be deemed to extend to any prior or subsequent breach, violation or
default hereunder or affect in any way any rights arising by virtue of any prior or subsequent such
occurrence. No delay or omission on the part of any party in exercising any right, power or remedy
under this Limited Guarantee will operate as a waiver thereof.
11. No Third Party Beneficiaries. Except for the provisions of this Limited Guarantee which reference Guarantor Affiliates
(each of which shall be for the benefit of and enforceable by each Guarantor Affiliate), the
parties hereby agree that their respective representations, warranties and covenants set forth
herein are solely for the benefit of the other parties hereto, in accordance with and subject to
the terms of this Limited Guarantee, and this Limited Guarantee is not intended to, and does not,
confer upon any Person other than the parties hereto and the Guarantor Affiliates any rights or
remedies hereunder, including the right to rely upon the representations and warranties set forth
herein.
12. Counterparts. This Limited Guarantee may be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same instrument. This
Limited Guarantee will become effective when duly executed by each party hereto.
13. Delivery by Facsimile or Electronic Transmission. This Limited Guarantee and any signed agreement or instrument entered into in connection
with this Limited Guarantee, and any amendments or waivers hereto or thereto, to the extent signed
and delivered by means of a facsimile machine or by e-mail delivery of a “.pdf” format data file,
shall be treated in all manner and respects as an original agreement or instrument and shall be
considered to have the same binding legal effect as if it were the original signed version thereof
delivered in person. No party hereto or to any such agreement or instrument shall raise the use of
a facsimile machine or e-mail delivery of a “.pdf” format data file to deliver a signature to this
Limited Guarantee or any amendment hereto or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine or e-mail delivery of a
“.pdf” format data file as a defense to the formation of a contract and each party hereto forever
waives any such defense.
14. Notices. Any notice, request, instruction or other document to be given hereunder by any party to
the others shall be in writing and delivered personally or sent by registered or certified mail,
postage prepaid, or by overnight courier:
(a) if to any Guarantor:
c/o Providence Equity Partners LLC
Nine Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
Nine Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
with a copy to (which shall not constitute notice):
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxx
Attention: Xxxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxx
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(b) if to the Company, to:
SRA International, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with copies to (which shall not constitute notice):
Xxxxxxxx & Xxxxx LLP
000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxxxxxx X. Fine
Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxxxxxx X. Fine
Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
or to such other persons or addresses as may be designated in writing by the party to receive such
notice as provided above. Any notice, request, instruction or other document given as provided
above shall be deemed given to the receiving party upon actual receipt, if delivered personally;
three Business Days after deposit in the U.S. mail, if sent by registered or certified mail,
postage prepaid; or on the next Business Day after deposit with an overnight courier, if sent by an
overnight courier.
15. Governing Law. This Limited Guarantee, and all claims or causes of action (whether at Law, in contract or
in tort) that may be based upon, arise out of or relate to this Limited Guarantee, or the
negotiation, execution or performance hereof, shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to principles of conflicts of law.
(a) Jurisdiction. Each party to this Limited Guarantee, by its execution hereof, (i) hereby
irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of
Delaware, or to the extent such Court does not have subject matter jurisdiction, the Superior Court
of the State of Delaware, for the purpose of any action between the parties arising in whole or in
part under or in connection with this Limited Guarantee, (ii) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of
the above- named courts, that its property is exempt or immune from attachment or execution, that
any such action brought in one of the above-named courts should be dismissed on grounds of forum
non conveniens, should be transferred or removed to any court other than one of the above-named
courts, or should be stayed by reason of the pendency of some other proceeding in any other court
other than one of the above-named courts, or that this Limited Guarantee or the subject matter
hereof may not be enforced in or by such court, and (iii) hereby agrees not to commence any such
action other than before one of the above-named courts. Notwithstanding the previous sentence, a
party may commence any action in a court other than the above-named courts solely for the purpose
of enforcing an order or judgment issued by one of the above-named courts.
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(b) Venue. Each party agrees that for any action between the parties arising in whole or in
part under or in connection with this Limited Guarantee, such party will bring actions only in the
State of Delaware. Each party further waives any claim and will not assert that venue should
properly lie in any other location within the selected jurisdiction.
(c) Service of Process. Each party hereby (i) consents to service of process in any action
between the parties arising in whole or in part under or in connection with this Limited Guarantee
in any manner permitted by Delaware law, (ii) agrees that service of process made in accordance
with clause (i) or made by registered or certified mail, return receipt requested, at its address
specified pursuant to Section 14, will constitute good and valid service of process in any
such action, and (iii) waives and agrees not to assert (by way of motion, as a defense, or
otherwise) in any such action any claim that service of process made in accordance with clause (i)
or (ii) does not constitute good and valid service of process.
17. Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LIMITED
GUARANTEE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LIMITED
GUARANTEE OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF
THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 17.
18. Representations and Warranties. Each Guarantor hereby represents and warrants to the Company with respect to itself that
(a) it has all power and authority to execute, deliver and perform this Limited Guarantee; (b) the
execution, delivery and performance of this Limited Guarantee by such Guarantor has been duly and
validly authorized and approved by all necessary company action, and no other proceedings or
actions on the part of such Guarantor are necessary therefor; (c) this Limited Guarantee has been
duly and validly executed and delivered by it and constitutes a valid and legally binding
obligation of it, enforceable against such Guarantor in accordance with its terms; (d) such
Guarantor has uncalled capital commitments equal to or in excess of such Guarantor’s Pro Rata
Percentage of the aggregate Guaranteed Obligations; (e) the execution, delivery and performance by
such Guarantor of this Limited Guarantee do not and will not (i) violate the organizational
documents of such Guarantor, (ii) violate any applicable law or judgment binding on such Guarantor
or its assets, or (iii) result in any violation of, or default (with or without notice or lapse of
time or both) under, or give rise to a right of termination, cancellation or acceleration of any
obligation or to the loss of any benefit under, any contract or agreement to which such Guarantor
is a party; and (f) such Guarantor has the financial capacity to pay and perform its obligations
under this Limited Guarantee, and all funds necessary for such Guarantor to fulfill its Guaranteed
Obligations under this Limited Guarantee shall be available to such Guarantor for so long as this
Limited Guarantee shall remain in effect in accordance with Section 7 hereof. Each
Guarantor acknowledges that the Company has specifically relied on the accuracy of the
representations and warranties contained in this paragraph 18 and in the event of any
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breach
hereof, the Company shall have a right to seek appropriate damages and any such damages shall be a
“Guaranteed Obligation” for purposes of this Agreement.
19. No Assignment. Neither the Guarantors nor the Company may assign their respective rights, interests or
obligations hereunder to any other Person (except by operation of law) without the prior written
consent of the Company (in the case of an assignment by any Guarantor) or the Guarantors (in the
case of an assignment by the Company), provided, that the Guarantors may assign all or a
portion of their respective obligations hereunder to an Affiliate or to an entity managed by or
advised by an Affiliate of the Guarantor, provided, further, that no such
assignment shall relieve such Guarantor of any liability or obligation hereunder except to the
extent actually performed or satisfied by the assignee.
20. Severability. Any term or provision of this Limited Guarantee that is invalid or unenforceable in any
situation in any jurisdiction will not affect the validity or enforceability of the remaining terms
and provisions hereof or the validity or enforceability of the offending term or provision in any
other situation or in any other jurisdiction; provided, however, that this Limited
Guarantee may not be enforced without giving effect to the limitation of the amount payable
hereunder to the Maximum Liability Cap provided in Section 1 hereof and to the provisions
of Sections 2(e), 4, 5 and 8 hereof. No party hereto shall assert,
and each party shall cause its respective Affiliates, security holders and representatives not to
assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
21. Confidentiality. This Limited Guarantee shall be treated as confidential and is being provided to the
Company solely in connection with the execution and delivery of the Merger Agreement. This Limited
Guarantee may not be used, circulated, quoted or otherwise referred to in any document, except with
the written consent of the Guarantors and the Company; provided, that no such written
consent shall be required (and the Guarantors, the Company and their Affiliates shall be free to
release such information) for disclosures to such Person’s respective representatives, so long as
such Persons agree to keep such information confidential on terms substantially identical to the
terms contained in this Section 21; further provided, that the Guarantors and the
Company may disclose this Limited Guarantee to the extent required by law, the applicable rules of
any national securities exchange or required or requested by the SEC in connection with any SEC
filings relating to the Merger.
22. Attorneys’ Fees and Costs. Each Guarantor agrees to pay, on demand, all
reasonable attorneys’ fees and all other costs and expenses that may be incurred by the Company in
the enforcement of this Limited Guarantee if (i) such Guarantor asserts in any litigation or other
proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its
terms and (ii) the Company prevails in such litigation or proceeding.
23. Headings. The headings contained in this Limited Guarantee are for convenience purposes only and will
not in any way affect the meaning or interpretation hereof.
24. Relationship of the Parties; Several Liability. Each party acknowledges and agrees that (a) this Limited Guarantee is not intended to, and
does not, create any agency, partnership, fiduciary or joint venture relationship between or among
any of the parties hereto and neither this Limited Guarantee nor any other document or agreement
entered into by any party hereto relating to the subject matter hereof shall be construed to
suggest otherwise and (b) the obligations of each of the Guarantors under this Limited Guarantee
are solely contractual in nature. Notwithstanding anything to the contrary contained in this
Limited Guarantee, the liability of each Guarantor hereunder shall be several, not joint and
several, based upon its respective Pro Rata Percentage as set forth opposite such Guarantor’s name
on Schedule A hereto (“Pro Rata Percentage”), and no Guarantor shall be liable for
any amount hereunder in excess of its Pro Rata Percentage of the lesser of (i) the Maximum
Liability Cap and (ii) the aggregate amount payable
9
by the Guarantors hereunder. In no event shall
Parent, Merger Sub or any Guarantor be considered an “Affiliate”, “security holder” or
“representative” of the Company or a Releasing Person for any purpose of this Limited Guarantee. Nothing herein shall be deemed to limit, amend or release any
rights of Parent or Merger Sub under the Debt Commitment Letter(s).
[Signature Pages Follow]
10
PROVIDENCE EQUITY PARTNERS VI L.P. | ||||||
By: Providence Equity GP VI L.P. | ||||||
Its: General Partner | ||||||
By: Providence Equity Partners VI L.L.C. | ||||||
Its: General Partner | ||||||
By: | /s/ Xxxxx X. Xxxxxxxxxx
|
|||||
Title: Authorized Signatory | ||||||
PROVIDENCE EQUITY PARTNERS VI-A L.P. | ||||||
By: Providence Equity GP VI L.P. | ||||||
Its: General Partner | ||||||
By: Providence Equity Partners VI L.L.C. | ||||||
Its: General Partner | ||||||
By: | /s/ Xxxxx X. Xxxxxxxxxx
|
|||||
Title: Authorized Signatory |
COMPANY: | ||||||
SRA INTERNATIONAL, INC. | ||||||
By: Name: |
/s/ Xxxxxxx X. Xxxxxx
|
|||||
Title: | President and Chief Executive Officer |
[Signature Page to Limited Guarantee]
Schedule A
Guarantor | Pro Rata Share | |||
Providence Equity Partners VI L.P. |
74.4042 | % | ||
Providence Equity Partners VI-A L.P. |
25.5958 | % |